13 Comments:

Once again Yes, Minister got there first. This is the politician's syllogism in action.

Of course part of the problem is that the public and the media will bay for "something to be done" and won't accept the possibility that the alternatives may be no better than the current (imperfect) situation.

I actually hope that Faulkner is just sabre rattling and doesn't actually pass a law that will simply result in cases having to go to Strasbourg rather than being resolved in the domestic courts. Aside from the costs, surely if the government is going to lose on human rights grounds (and of course if what they are doing is legit under ECHR then the whole point is moot) surely it's not only cheaper and quicker but also less embarassing to lose in the UK.

A Lord Chancellor brow-beating the judiciary is not a wonderful situation either but they are hopefully big enough to ignore him.

The current 'imperfect' situation is that terrorism is now up there with bad pop music as a major UK export.

This is Hassan Butt, a jihadi, interviewed in prospect:

'Britian is a very liberal country in comparison to america where Muslims don't have many rights. This is the type of country where you do have more rights. Now, with Afghanistan gone, Muslims don't really have a place where they can come back to and regroup.'

I do kind of think that 'something must be done' about that, forget the tube bombings, what about the arab, israeli, indian, etc civilians being killed by british citizens in an undeclared war?

It's a pretty incredible claim that the current situation is unimprovable.

Convincing me of that would need rather more evidence than a knee-jerk speculation piece. Especially one whose contents could have been predicted just about exactly from the headline 'blair suggest new anti-terror measures', and which gets several of the key facts about the proposal simply wrong.

Pray tell which part(s) of the specific article to which Nosemonkey has linked are factually incorrect?

I may, conceivably, have got the year of the relevant Immigration Act wrong, having identified it from memory, but it is a fact that the Home Secretary has the power to deport foreign nationals in the interests of national security.

The section on the Geneva Convention is a direct quotation from the UN's website.

There is ample extant case law under HRA 1998 and ECHR which shows that the current judicial interpretation of Article 3 precludes deportation where the deportee may be at risk of torture - this is backed up by the UK's efforts to persuade various Arab states to sign a Memorandum of Agreement promising not to torture and article 17 most certainly precludes the UK government placing its own interpretation on any article of ECHR if such an interpretation is contrary to precedents set in case law at the European Court of Human Rights.

Oh, and let's not forget that in constitutional matters the House of Lords, and not the Commons, has primacy.

You need to read ECHR properly as it entire clear in its word to which articles considerations of public order and national security, etc. can and can't be - article 3 in in all legal respect inviolate. The best the UK could do short of pulling out of ECHR and, by logical extension, the EU itselfm would be to apply for a derogation on article 3 which would certainly be refused - Falconer admitted as much himself in the same interview on the Today programme.

Pray tell which part(s) of the specific article to which Nosemonkey has linked are factually incorrect?

The idea that the appeal procedure would delay deportation, when the plan specifically allows for appeals from the destination country post-deportation.

In general, if the ECHR is supposed to be a genuinely absolutely binding commitment on the UK gov to guarantee the rights of Jordanian citizens in Jordan, above all other relevent laws, all executive or parliamentary decision, all considerations of national interest, pragmatism, feasibility and security, how does it not constitute a legal obligation to invade Jordan?

1. You're forgetting the little matters of ECHR article 6 and habeus corpus - the plaintiff, in the case the putative deportee, has a right to present in court to give evidence is his case.

The idea of an appealling against deportation from somewhere like Jordan is an utter nonsense. The matter of applicability or otherwise of article 3 must be determined prior to deportation - the issue here is not whether a individual's article 3 rights have been violated after deportation by whether deportation to a country which make use of torture is repugnent under article 3.

Trust me, of the laws I do know in detail, HRA is one I know better than most. This is a constitutional case in which, first, the law lords and then the European Court of Human Rights have primacy over Parliament.

Neither of these is specific to extradition or citizenship status, so if what you say is so, I would be interested in the explanation for why they do not similarly prevent the routine situation where a convict appeals his sentence from jail, instead of remaining on bail until all appeals are exhausted.

Because the situation with a convict appealing from prison is completely different from that of a deportee seeking to appeal after deportation.

The critical difference is that the convict, while in prison, remains in the UK. Should the appeal be allowed and a retrial ordered they are then free to appear in their own defence and give testimony whether they remain in prison throughtout the duration of the retrial or are bailed in advance of the retrial.

In the case of a deportee no such facility is possible - a writ of habeus corpus could not be served on a foreign government nor could it be guaranteed that the deporteee would be able to appear. A deportee would thus be denied the right to appear in their own defence, hence the breach of article 6.